Employment Act (Northern Ireland) 2016

Industrial tribunals

Conciliation before and after institution of proceedings

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• (1) After Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 insert—

(20A) (1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to the Agency prescribed information, in the prescribed manner, about that matter. This is subject to paragraph (7). (2) On receiving the prescribed information in the prescribed manner, the Agency shall send a copy of it to a conciliation officer. (3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings. (4) If— (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. (5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period. (6) In paragraphs (3) to (5) “settlement” means a settlement that avoids proceedings being instituted. (7) A person may institute relevant proceedings without complying with the requirement in paragraph (1) in prescribed cases. The cases that may be prescribed include (in particular)— (a) cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter; (b) cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are; (c) cases where Article 20B applies because the Agency has been contacted by a person against whom relevant proceedings are being instituted. (8) A person who is subject to the requirement in paragraph (1) may not present an application to institute relevant proceedings without a certificate under paragraph (4). (9) Where a conciliation officer acts under this Article in a case where the prospective claimant has ceased to be employed by the employer and the proposed proceedings are proceedings under Article 145 of the Employment Rights Order, the conciliation officer may in particular— (a) seek to promote the reinstatement or re-engagement of the prospective claimant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or (b) where the prospective claimant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the prospective claimant. (10) In paragraphs (1) to (7) “prescribed” means prescribed in industrial tribunal procedure regulations. (11) Industrial tribunal procedure regulations may make such further provision as appears to the Department to be necessary or expedient with respect to the conciliation process provided for by paragraphs (1) to (8). (12) Industrial tribunal procedure regulations may (in particular) make provision— (a) authorising the Department to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to the Agency under paragraph (1) or issuing a certificate under paragraph (4); (b) requiring the Agency to give a person any necessary assistance to comply with the requirement in paragraph (1); (c) for the extension of the period prescribed for the purposes of paragraph (3); (d) treating the requirement in paragraph (1) as complied with, for the purposes of any provision extending the time limit for instituting relevant proceedings, by a person who is relieved of that requirement by virtue of paragraph (7)(a). (20B) (1) This Article applies where— (a) a person contacts the Agency requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings against that person, and (b) the Agency has not received information from the prospective claimant under Article 20A(1). (2) This Article also applies where— (a) a person contacts the Agency requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings by that person, and (b) the requirement in Article 20A(1) would apply to that person but for Article 20A(7). (3) Where this Article applies a conciliation officer shall endeavour to promote a settlement between the persons who would be parties to the proceedings. (4) If at any time— (a) the conciliation officer concludes that a settlement is not possible, or (b) a conciliation officer comes under the duty in Article 20A(3) to promote a settlement between the persons who would be parties to the proceedings, the duty in paragraph (3) ceases to apply at that time. (5) In paragraphs (3) and (4) “settlement” means a settlement that avoids proceedings being instituted. (6) Paragraph (9) of Article 20A applies for the purposes of this Article as it applies for the purposes of that Article. (20C) (1) Where an application instituting relevant proceedings has been presented to an industrial tribunal, and a copy of it has been sent to a conciliation officer, the conciliation officer shall endeavour to promote a settlement— (a) if requested to do so by the person by whom and the person against whom the proceedings are brought, or (b) if, in the absence of any such request, the conciliation officer considers that the officer could act under this Article with a reasonable prospect of success. (2) Where a person who has presented a complaint to an industrial tribunal under Article 145 of the Employment Rights Order has ceased to be employed by the employer against whom the complaint was made, the conciliation officer may in particular— (a) seek to promote the reinstatement or re-engagement of the complainant by the employer, or by a successor of the employer or by an associated employer, on terms appearing to the conciliation officer to be equitable, or (b) where the complainant does not wish to be reinstated or re-engaged, or where reinstatement or re-engagement is not practicable, and the parties desire the conciliation officer to act, seek to promote agreement between them as to a sum by way of compensation to be paid by the employer to the complainant. (3) In paragraph (1) “settlement” means a settlement that brings proceedings to an end without their being determined by an industrial tribunal.

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• (2) Schedule 1 (conciliation: minor and consequential amendments) shall have effect.

Extension of limitation periods to allow conciliation

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Schedule 2 (extension of limitation periods to allow for conciliation) shall have effect.

Extended power to define “relevant proceedings” for conciliation purposes

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• (1) Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation) is amended as follows.

• (2) In paragraph (8) (power to amend list in paragraph (1) of Article 20), for sub-paragraphs (a) and (b) substitute “ amend the definition of “relevant proceedings” in paragraph (1) by adding to or removing from the list in that paragraph particular types of industrial tribunal proceedings. ”.

• (3) After paragraph (8) insert—

(8A) An order under paragraph (8) that adds industrial tribunal proceedings to the list in paragraph (1) may amend any statutory provision so as to extend the time limit for instituting those proceedings in such a way as appears necessary or expedient in order to facilitate the conciliation process provided for by Article 20A. (8B) An order under paragraph (8) that removes industrial tribunal proceedings from the list in paragraph (1) may— (a) repeal or revoke any statutory provision that, for the purpose mentioned in paragraph (8A), extends the time limit for instituting those proceedings; (b) make further amendments which are consequential on that repeal or revocation.

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Power to require party to proceedings to pay deposit

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• (1) Article 11 of the Industrial Tribunals (Northern Ireland) Order 1996 (pre-hearing reviews and preliminary matters), in paragraph (2)(a) (power to require party to proceedings to pay deposit)—

• (a) omit “, if he wishes to continue to participate in those proceedings,”;

• (b) after “£500” add “ as a condition of continuing to participate in those proceedings or doing such other thing as may be prescribed in the regulations ”.

• (2) In Article 25 of that Order (regulations and orders)—

• (a) in paragraph (1), for “All” substitute “ Subject to paragraph (1A), all ”;

• (b) after paragraph (1) insert—

(1A) Regulations which include provision under Article 11(2)(a) shall not be made unless a draft of the regulations has been laid before, and approved by resolution of, the Assembly.

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Fair Employment Tribunal

Conciliation before and after complaint to Fair Employment Tribunal

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• (1) The Fair Employment and Treatment (Northern Ireland) Order 1998 is amended as follows.

• (2) After Article 88 insert—

(88ZA) (1) Subject to paragraph (7), before a person (“the prospective complainant”) presents a complaint to the Tribunal under Article 38 relating to any matter, the prospective complainant must provide to the Agency prescribed information, in the prescribed manner, about that matter. (2) On receiving the prescribed information in the prescribed manner, the Agency shall send a copy of it to a conciliation officer. (3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be the complainant and the respondent if a complaint were presented to the Tribunal under Article 38. (4) If— (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective complainant. (5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period. (6) In paragraphs (3) to (5) “settlement” means a settlement that avoids a complaint being presented to the Tribunal under Article 38. (7) A person may present a complaint to the Tribunal under Article 38 without complying with the requirement in paragraph (1) in prescribed cases. The cases that may be prescribed include (in particular)— (a) cases where the requirement is complied with by another person presenting a complaint to the Tribunal under Article 38 relating to the same matter; (b) cases where prescribed proceedings are instituted by means of the same form as the complaint; (c) cases where Article 88ZB applies because the Agency has been contacted by a person who is the respondent on a complaint presented to the Tribunal under Article 38. (8) A person who is subject to the requirement in paragraph (1) may not present a complaint to the Tribunal under Article 38 without a certificate under paragraph (4). (9) In paragraphs (1) to (7) “prescribed” means prescribed in regulations under Article 84. (10) Regulations under Article 84 may make such further provision as appears to the Department to be necessary or expedient with respect to the conciliation process provided for by paragraphs (1) to (8). (11) Regulations under Article 84 may (in particular) make provision— (a) authorising the Department to prescribe, or prescribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to the Agency under paragraph (1) or issuing a certificate under paragraph (4); (b) requiring the Agency to give a person any necessary assistance to comply with the requirement in paragraph (1); (c) for the extension of the period prescribed for the purposes of paragraph (3); (d) treating the requirement in paragraph (1) as complied with, for the purposes of any provision extending the time limit for presenting a complaint to the Tribunal under Article 38, by a person who is relieved of that requirement by virtue of paragraph (7)(a). (88ZB) (1) This Article applies where— (a) a person contacts the Agency requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to a complaint being presented to the Tribunal under Article 38 against that person, and (b) the Agency has not received information from the prospective complainant under Article 88ZA(1). (2) This Article also applies where— (a) a person contacts the Agency requesting the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to a complaint being presented to the Tribunal under Article 38 by that person, and (b) the requirement in Article 88ZA(1) would apply to that person but for Article 88ZA(7). (3) Where this Article applies a conciliation officer shall endeavour to promote a settlement between the persons who would be the complainant and the respondent if a complaint were presented to the Tribunal under Article 38. (4) If at any time— (a) the conciliation officer concludes that a settlement is not possible, or (b) a conciliation officer comes under the duty in Article 88ZA(3) to promote a settlement between the persons who would be the complainant and the respondent, the duty in paragraph (3) ceases to apply at that time. (5) In paragraphs (3) and (4) “settlement” means a settlement that avoids a complaint being presented to the Tribunal under Article 38. (88ZC) Where a complaint has been presented to the Tribunal under Article 38, the Tribunal shall send a copy of the complaint to the Agency and it shall be the duty of the Agency— (a) if it is requested to do so by both the complainant and the respondent; or (b) if, in the absence of any such request, the Agency considers that it could act under this Article with a reasonable prospect of success, to endeavour to promote a settlement of the complaint without its being determined by the Tribunal.

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• (3) In consequence of subsection (2)—

• (a) in Article 84 (tribunal procedure), in paragraph (2A)(b), after “form” insert “ (including certificates issued under Article 88ZA or 88ZB) ”;

• (b) in Article 88 (conciliation)—

• (i) omit paragraphs (1) and (2);

• (ii) in paragraph (3), for “paragraph (1) or (2)” substitute “ any of Articles 88ZA to 88ZC ”;

• (iii) in paragraph (4), after “this Article” insert “ or any of Articles 88ZA to 88ZC ”;

• (c) in Article 88A (conciliation: recovery of sums payable under compromises), in paragraph (1)(a)(i), for “Article 88” substitute “ any of Articles 88ZA to 88ZC ”;

• (d) in Article 100 (restrictions on contracting out), in paragraph (2)(a), for “Article 88(1) or (2)” substitute “ any of Articles 88ZA to 88ZC ”.

Extension of time limit to allow conciliation

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• (1) In Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (period within which proceedings must be brought), in paragraph (1), for “to Article 46A” substitute “ and to Articles 46A and 46B ”.

• (2) After Article 46A insert—

(46B) (1) This Article applies for the purposes of Article 46(1)(a). But it does not apply to a dispute which is a relevant cross-border dispute for the purposes of Article 46A. (2) In this Article— (a) Day A is the day on which the complainant concerned complies with the requirement in paragraph (1) of Article 88ZA (requirement to contact Agency before complaint to Tribunal) in relation to the matter in respect of which the complaint is brought, and (b) Day B is the day on which the complainant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under paragraph (10) of that Article) the certificate issued under paragraph (4) of that Article. (3) In working out when the time limit set by Article 46(1)(a) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by Article 46(1)(a) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) Any power of the Tribunal to extend the time limit set by Article 46(1)(a) is exercisable in relation to the time limit as extended by this Article.

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Power to require party to proceedings to pay deposit

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• (1) In Article 84B of the Fair Employment and Treatment (Northern Ireland) Order 1998 (pre-hearing reviews and preliminary matters), in paragraph (2)(a) (power to require party to proceedings to pay deposit)—

• (a) omit “, if he wishes to continue to participate in those proceedings,”;

• (b) after “£500” add “ as a condition of continuing to participate in those proceedings or doing such other thing as may be prescribed in the regulations ”.

• (2) In Article 104 of that Order (regulations and orders)—

• (a) in paragraph (1), after “101(1)” insert “ and no regulations which include provision under Article 84B(2)(a) ”;

• (b) in paragraph (2), after “Schedule 1” insert “ and regulations which include provision under Article 84B(2)(a) ”.

Assessment of matters relating to tribunal proceedings

Assessment of matters relating to tribunal proceedings

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• (1) The Department may by regulations make provision for a prescribed person to provide relevant parties with an assessment in accordance with the regulations of prescribed matters in connection with any tribunal proceedings which might be or have been instituted by one or more of those parties.

• (2) In this section—

• “prescribed” means prescribed by regulations under this section;

• “relevant parties” means such persons as may be prescribed;

• “tribunal proceedings” means prescribed proceedings before an industrial tribunal or the Fair Employment Tribunal.

• (3) Regulations under this section are subject to negative resolution.

Reviews

Review of early conciliation

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• (1) The Department must review the operation of—

• (a) Articles 20 to 20C of the Industrial Tribunals (Northern Ireland) Order 1996;

• (b) Articles 46B and 88ZA to 88ZC of the Fair Employment and Treatment (Northern Ireland) Order 1996; and

• (c) the amendments made by Schedules 1 and 2,

at the end of the period of one year beginning with the commencement of this section.